England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th April 2018

Robin Purchas QC:

Introduction

1. The Claimant applies for judicial review of:

a. The decision of the Defendant made on 26^th January 2010, refusing the Claimant's application for an extension of his leave to remain as a tier 5 religious worker on the ground that it was not served on him as required by section 4(1) of the Immigration Act 1971 (the 1971 Act) (Ground 1);

b. The decision of the Defendant dated 17^th December 2015, refusing the Claimant's application for leave to remain on human rights grounds and certifying the claim as clearly unfounded under section 94 of the Nationality Immigration and Asylum Act 2002 (the 2002 Act) on the ground that the decision was in both respects unlawful (Ground 2); and

c. His detention from 5^th November 2015 until 19^th February 2016 on the ground that it was unlawful (Ground 3).

There were also claims in respect of the service of notices relating to his removal, but these have become academic and were no longer pursued in this court.

2. The application for judicial review was lodged on 22^nd January 2016. Permission was refused as totally without merit by the deputy High Court judge but was granted by the Court of Appeal by consent on 16^th October 2017.

Background

3. The Claimant is a national of India and is a religious worker. He entered the UK on 2^nd December 2007 with Tier 5 leave as a religious worker until 7^th May 2008. On 9^th April 2008 he applied for an extension of leave, which was granted until 2^nd December 2009. The Claimant failed to make a further application for an extension of leave before his leave expired but did so on 22^nd December 2009. As the application had been made after expiry of the period of leave, the Claimant did not benefit from interim continuance of his leave while the application was being determined pursuant to section 3C of the 1971 Act.
4. An acknowledgement of the application was sent to the address which the Claimant had given in his application, which was the Singh Temple in Cheshire Road, Smethwick, where he was working. The Claimant stated in his witness statement that he took advice from a colleague, who said that he should not worry about the outcome of the application as it could take years before a decision could be made and that he should not make any enquiries with the Defendant.
5. On 26^th January 2010 the Defendant made the decision to refuse the extension of leave. The decision letter explained that the Claimant did not satisfy the requirements of the rules for an extension to be made, including that he did not have a certificate of sponsorship from a recognised sponsor. As a result he was awarded no points and the application was refused. The letter stated that there was no right of appeal against the decision and that he had no right to remain in the UK and should leave as soon as possible. He was required to contact the enforcement office by 9^th February 2010 to discuss his departure from the UK. The letter went on to say that, if the Claimant wanted the Defendant to reconsider the decision on the basis of new or additional material, he must submit a fresh application with the appropriate fee.
6. Claire Turner, an acting senior executive officer of the Defendant, explained in her witness statement that the letter was sent by recorded delivery to the Claimant at the same address and that it was not returned as undelivered. However, the Claimant states that he never received the decision letter and was unaware that a decision had been made until he was encountered and interviewed in November 2015.
7. The Claimant remained at the Singh temple until October 2010, when he moved out to travel around the country working on a voluntary basis as a religious worker in various Sikh temples and festivals.
8. On 5^th November 2015 the Claimant was staying with a friend in east London when the premises were raided by immigration officers, who arrested the Claimant. In his witness statement the Claimant explained that in interview at the police station he was told that he had been arrested because he did not have leave to remain. He told the officers that he had made an application for an extension of leave, but they said that the application had been refused in 2010. The Claimant responded that he had never received the decision, to which the officers replied that the decision had been made in 2010 and he had been summoned to report to the immigration authorities, which he had failed to do.
9. The Claimant was served with a notice of liability to removal, which stated as the reasons for it being given:

"You are specifically considered to be a person who has overstayed their leave to remain in the United Kingdom. You were granted leave to remain until 2^nd December 2009 as a religious worker. However your most recent application was refused with no right of appeal on 26^th January 2010. You are therefore liable for removal from the United Kingdom."

10. He was also served with a notice of the reasons for his detention which included that:

"Detention is only used when there is no reasonable alternative. It has been decided that you should remain in detention because …

a. You are likely to abscond if given temporary admission or release; …

d. Your removal from the United Kingdom is imminent…

This decision has been reached on the basis of the following factors:

1. You do not have enough close ties (eg family or friends) to make it likely that you will stay in one place …

8. You have previously failed or refused to leave the UK when required to do so…."

There were no other grounds or factors identified on the form.

11. The Claimant was thereafter detained. The detention review for 5^th November 2015 noted at paragraph 6:

"Assessment of risk of absconding: High – Subject is an overstayer/illegal worker in the UK. He does not have enough close ties in the UK to make it likely that he will stay in one place. He has previously failed to leave the UK when required to do so and he does not have any lawful basis to be in the UK."

12. On 29^th November 2015 removal directions were served for the Claimant's removal on 10^th December 2015.
13. On 7^th December 2015 solicitors acting for the Claimant wrote to the Defendant pursuant to section 120 of the 2002 Act, seeking leave for the Claimant to remain. The letter stated that, as the Claimant had not received notice of the decision letter in 2010, he had an outstanding application for extension of his leave. It continued that he should be granted leave to remain on human rights grounds under article 8 in reliance on his family and private life.
14. On 9^th December 2015 the removal directions were deferred and subsequently reset for 23^rd January 2016.
15. On 17^th December 2015 the Defendant refused the application. The letter set out the reasons for the decision, including that the Claimant had not established any human rights claim within the rules relating to family or private life. The letter went on to consider exceptional circumstances and leave outside the rules under Article 8. In paragraph 15 it stated:

"In support of your application you state that you have an outstanding application with the Home Office pending since December 2009. It is noted that this application under T5 TW – Religious Migrants was refused on 26^th January 2010 with the refusal letter sent to Bababandasinghbahadur Sikh Temple, 217-218 Cheshire Road Smethwick West Midlands B67 6DJ. It is noted that the letter has not been returned to the home office as undelivered. The onus is on you as the applicant to prove that the letter has not been received."

The Defendant now accepts that the last sentence in that paragraph is incorrect in that there was no presumption of service that applied to this decision at the time, so that the Defendant had the burden of proving service on the balance of probabilities.

16. The letter concluded that there were no exceptional circumstances that would justify the grant of leave outside the rules.
17. The claim was one that fell within section 94(3) of the 2002 Act so that the Defendant had to certify the claim as clearly unfounded unless she was satisfied that it was not clearly unfounded. The Defendant concluded that the human rights case had not been made out and that the Claimant had failed to demonstrate anything exceptional to support the grant of leave. On that basis the Defendant concluded that the application for leave was "clearly without substance and cannot succeed on any legitimate view." The Defendant accordingly certified the claim under section 94 of the 2002 Act as clearly unfounded.
18. On 22^nd January 2016 the claim for judicial review was lodged and the removal directions were again deferred.
19. On 19^th February 2016 the Claimant was released from detention, having been detained for a total of 107 days.

Legal and Policy Framework

20. Section 4(1) of the 1971 Act provides:

"(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions) … shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected, …"

21. In R (oao Anufrijeva) v SSHD [2004] 1 AC 604 Lord Steyn considered the importance of service at paragraph 26 as follows:

"26 The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey [1983] 1 AC 1, 10g, per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198, 209d; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115."

22. In Ahmadi v SSHD [2013] EWCA Civ 512 Sullivan LJ concluded on the effect of section 4 of the 1971 Act:

"22 I readily accept Mr. Blundell's submission that the 2002 Act, in sections 82 and 105 draws a distinction between making, or taking an immigration decision, and giving written notice of that decision to the person concerned. I do not accept his submission that the same approach is to be found in the 1971 Act. Section 3 confers the power to give and to vary leave to remain. The first part of section 4(1) provides that this power shall be exercised by the Secretary of State. The second part of section 4(1) provides that the power "shall be exercised by notice in writing given to the person concerned." The notice in writing is not a subsequent step following the exercise of the power, it is the way in which the power is to be exercised. Mr. Blundell's submission invites us to read section 4(1) as though it said: "and notice in writing shall be given to the person concerned of the exercise of the power.""

23. For this purpose the burden lies on the Defendant to prove that on the balance of probabilities service was effected. In Syed (curtailment of leave- notice) India [2013] UKUT 144 (IAC) the Tribunal concluded at paragraph 28:

"In the absence of an order made by statutory instrument under section 4(1) of the Immigration Act 1971 dealing with the giving of notice  of variation of leave where there is no right of appeal, the Secretary of State has to be able to prove that notice of a decision varying leave to remain under section 3(3)(a) of the Immigration Act 1971 where there is no right of appeal was communicated to the person concerned for it to be effective. Where there is no "immigration decision" the Immigration (Notices) Regulations 2003 do not apply. Communication would be effective if made to a person authorised to receive it on that person's behalf, see Hosier v Goodall [1962] 1 All E.R. 30, but the Secretary of State cannot rely upon deemed postal service."

24. The power of detention is provided in paragraph 16(2) of schedule 2 to the 1971 Act, which provides:

"(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A  or 12 to 14, that person may be detained under the authority of an immigration officer pending:

(a) a decision whether or not to give such directions;

(b) his removal in pursuance of such directions."

25. In R (Lumba) v SSHD [2012] 1 AC 245 Lord Dyson considered the effect of illegality on the power to detain and damages, including the following:

"64 Trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm. An action lies even if the victim does not know that he was imprisoned: see, for example, Murray v Ministry of Defence [1988] 1 WLR 692, 703 a–b where Lord Griffiths refused to redefine the tort of false imprisonment so as to require knowledge of the confinement or harm because

"The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage."

By contrast, an action on the case (of which a claim in negligence is the paradigm example) regards damage as the essence of the wrong.

65 All this is elementary, but it needs to be articulated since it demonstrates that there is no place for a causation test here. All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so. As Lord Bridge of Harwich said in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58, 162 c – d: "The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it."

66 The causation test shifts the focus of the tort on to the question of how the defendant would have acted on the hypothesis of a lawful self-direction, rather than on the claimant's right not in fact to be unlawfully detained. There is no warrant for this. A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 established that both species of error render an executive act ultra vires, unlawful and a nullity. In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires: see Boddington v British Transport Police [1999] 2 AC 143, 158 d – e.

67 Mr Beloff submits that there are inherent problems in what I consider to be the correct and principled approach. First, it fails to take account of the nature or extent of the public law error. For example, he suggests that it treats for the purposes of liability as equally unlawful a decision to detain made by an official one grade lower than that specified in the detention policy (but which is otherwise unimpeachable) and a decision to detain for which there is no statutory authority at all. Secondly, it allows what is in essence a public law challenge to be made under the guise of a private law action without any of the procedural safeguards which apply in a judicial review application. In particular, the normal time limits for judicial review proceedings are circumvented. Thirdly, judicial review is a discretionary remedy. A minor public law error may result in no substantive relief being granted at all in judicial review proceedings, whereas a claimant can bring proceedings for false imprisonment as of right.

68 I do not consider that these arguments undermine what I have referred to as the correct and principled approach. As regards Mr Beloff's first point, the error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain. …

70 As for Mr Beloff's other points, such force as they have derives from the fact that the detention in these cases is unlawful because it is vitiated by a public law error. The significance and effect of that error cannot be affected by the fortuity that it is also possible for a victim to challenge the decision by judicial review proceedings (which are subject to tighter time limits than private law causes of action) and that judicial review is a discretionary remedy. It is well established that a defendant can rely on a public law error as a defence to civil proceedings and that he does not need to obtain judicial review as a condition for defending the proceedings: see, for example, Wandsworth London Borough Council v Winder [1985] AC 461. The same applies in the context of criminal proceedings: see Boddington v British Transport Police [1999] 2 AC 143. Mr Beloff submits that the position of a claimant who relies on a public law error to found his cause of action and a defendant can sensibly be differentiated. But it is difficult to see how or why.

71 I can see that at first sight it might seem counter-intuitive to hold that the tort of false imprisonment is committed by the unlawful exercise of the power to detain in circumstances where it is certain that the claimant could and would have been detained if the power had been exercised lawfully. But the ingredients of the tort are clear. There must be a detention and the absence of lawful authority to justify it. Where the detainer is a public authority, it must have the power to detain and the power must be lawfully exercised. Where the power has not been lawfully exercised, it is nothing to the point that it could have been lawfully exercised. If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort has not been committed."

26. In Bostridge v Oxleas NHS FT [2015] EWCA Civ 79 Vos LJ considered the approach to nominal damages in cases of unlawful detention, including the following:

"20 … The tort of false imprisonment is compensated in the same way as other torts such as to put the claimant in the position he would have been in had the tort not been committed. Thus if the position is that, had the tort not been committed, the claimant would in fact have been in exactly the same position, he will not normally be entitled to anything more than nominal damages.  The identity of the route by which this same result might have been achieved is unlikely to be significant.

21 The majority of the Justices in Lumba make it clear that nothing more than nominal damages can be awarded where the claimant would have been detained anyway. Paragraph 93 of Lord Dyson's judgment (cited above) shows that a detainee who would have remained in detention had the proper procedures been followed (and had no tort been committed) "has suffered no loss because he would have remained in detention whether the tort was committed or not". Lords Phillips and Collins agreed with Lord Dyson as to nominal damages (paragraphs 335 and 237). Lord Kerr was to a similar effect at paragraph 253 where he said: "I believe that a distinction is clearly merited between those cases where it is plain that the detainees would have been released and those where it can be shown that they would have been lawfully detained, had the correct procedures been followed" (original emphasis). None of these Justices is making a distinction between situations in which the power to detain is held by the defendant and situations where third parties would have effected the detention. …

23 As I have said, the principle dictates that the court, in assessing damages for the tort of false imprisonment, will seek to put the claimant in the position he would have been in had the tort not been committed. To do that, the court must ask what would have happened in fact if the tort had not been committed. In each of Lumba and Kambadzi, the answer was obvious. Had the torts of false imprisonment not been committed, the Secretary of State would have applied the published policy or undertaken the appropriate custody reviews. In both cases, the claimants would still have been detained. They sustained no compensatable loss. The majority of the Supreme Court determined, in addition, that vindicatory damages were not available in these circumstances (see paragraph 74 of Baroness Hale in Kambadzi)."

27. In R (oao Jollah) v SSHD (no 2) [2017] EWHC 2821 (Admin) Lewis J summarised the principles as follows:

"64 Secondly, the question is whether the defendant can demonstrate that the claimant would have been subjected to the detention (here the unlawful curfew) not merely whether the claimant could have been subjected to such a curfew. The burden is on the defendant to show that the claimant would have been detained (here subjected to the curfew). That involves, in essence, two questions. The defendant must establish that there is a power which, used lawfully, permitted the detention (here, the imposition of the curfew). The defendant must show that the power would, not could, have been used and that the claimant would have been detained (here, subjected to the curfew).

65 It is not necessary for the defendant to show that it is inevitable that the claimant would have been subjected to the detention. It is sufficient if, on a balance of probabilities, the defendant can show that the claimant would have been detained, that is, that it is more likely than not that the claimant would have been detained. I reach that conclusion for the following reasons. The issue here is a question of the assessment of damages in civil law. The burden of proof on such questions is the usual one in civil cases, namely, the balance of probabilities, that is, is it more likely than not that the relevant event had occurred (or would have occurred)."

28. As to policy in this respect the Defendant's Enforcement Instructions and Guidance (EIG) provides, so far as relevant, as follows:

At paragraph 55.1.1:

"The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of immigration bail and, wherever possible, alternatives to detention are used (see 55.20 and chapter 57). Detention is most usually appropriate:

• to effect removal; …"

Paragraph 55.3 continues:

"Decision to detain (excluding criminal casework cases)

1. There is a presumption in favour of granting immigration bail - there must be strong grounds for believing that a person will not comply with conditions of immigration bail for detention to be justified.

2. All reasonable alternatives to detention must be considered before detention is authorised.

3. Each case must be considered on its individual merits, including consideration of the duty to have regard to the need to safeguard and promote the welfare of any children involved."

55.3.1 sets out factors influencing a decision to detain, including the following:

"All relevant factors must be taken into account when considering the need for initial or continued detention, including:

• What is the likelihood of the person being removed and, if so, after what timescale?

• Is there any evidence of previous absconding? …

• Is there a previous history of complying with the requirements of immigration control? (For example, by applying for a visa or further leave).

• What are the person's ties with the UK? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependant is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the detainee? Does the person have a settled address/employment?"

Ground 1 Failure to serve the 2010 Decision Letter

Background facts

29. I have set out the general background above. The Claimant contended throughout that he did not receive a copy of the 2010 decision and that he was only told about it in 2015 when he was arrested. In her summary grounds of defence, in addition to relying on the statutory presumption of service, which she now concedes was in error, the Defendant further contended that on the evidence the more likely explanation was that the Claimant received the decision letter, so that in any event the decision was on the facts lawfully served.
30. The deputy judge refused permission on the papers on 15^th March 2016, certifying the claim as totally without merit. The Claimant appealed on the ground that the judge was wrong to refuse permission as the claim was properly arguable and in particular ground 1 of the detailed grounds of review was properly arguable and the judge was wrong to hold otherwise. Ground 1 included that the decision was erroneous in that the Defendant had wrongly applied the statutory presumption under the Immigration (Notices) Regulations 2003 (the 2003 Regulations), which did not apply to the 2010 decision.
31. Following the grant of permission to appeal, the parties agreed that the appeal should be allowed. For that purpose, pursuant to paragraph 6 of PD 52D to Part 52 of the CPR the parties agreed a Statement of Reasons (SoR). The SoR recited the background to the appeal as set out above. It continued:

"5. The parties agree and accept that the decision of 26 January 2010 was not validly served essentially for the reasons set out in paragraphs 4-8 of the Appellant's grounds. Paragraph 82B of the Immigration (Leave to Enter and Remain) Order 2000, as amended by SI 2013/1749, does not apply to the decision under question as it only came into effect on 12 July 2013. Prior to 12 July 2013, there was no statutory instrument which dealt with the giving of notice for non-appealable decisions.

6. The giving of notice of decisions which were appealable to the First-tier Tribunal under the NIA Act 2002 was provided for in the Immigration (Notices) Regulations 2003 (SI 2003/658) as amended). Non- appealable decisions remained subject to common law and, as the Upper Tribunal held in Syed (curtailment of leave – notice) [2013] UKUT 00144 (IAC), the requirement was that the decision (there a non-appealable curtailment decision) should be "communicated to the person concerned." The Respondent accepts that, on the facts of this case, the decision was not validly notified or served in the light of these requirements.

7. The parties also agree that in the light of the foregoing ground 1 and the other grounds of review are properly arguable and should therefore be considered at a substantive hearing."

32. On the basis of the SoR on 17^th October 2017 Longmore LJ allowed the appeal and ordered that the claim be remitted to this court for a substantive hearing.
33. In her detailed grounds filed on 16^th January 2018 the Defendant sought to rely on the fact that, notwithstanding that the statutory presumption did not apply to this decision, she could still maintain that the decision had been served as set out in her summary grounds. That was resisted by the Claimant on the basis of the SoR, which he contended made the unequivocal concession that the notice had not been served in accordance with the requirements.

Submissions

34. Mr William Hansen, who appears for the Defendant, accepts that the Defendant is bound by the concession that was in fact made in the SoR and that, if the true effect of the SoR is to concede that there was no effective service of the decision letter, whether by applying the statutory presumption or otherwise, ground 1 must succeed. However, he submits that the SoR must be construed contextually. On that basis it is plain that the appeal was limited to the contention in paragraphs 4-8 of the grounds for judicial review, which was solely directed to the error in respect of the application of the statutory presumption. The summary grounds made clear that the Defendant also relied in the alternative on the contention that there had in fact been effective service in any event. In that light it is clear, he submits, that paragraph 5 of the SoR was directed to the point of statutory construction and the last sentence in paragraph 6 was referring back to those requirements when it stated that the Defendant "accepts that in the facts of this case the decision was not validly notified or served in the light of these requirements".
35. In the circumstances there was no concession intended or in fact made in respect of whether or not the decision letter had in fact been validly served, notwithstanding that the statutory presumption was accepted not to apply. Moreover paragraph 7 would only have meaning on that basis in that a substantive hearing of ground 1 would not be required if it had been conceded that there had not been service of the decision letter at all as required.
36. This is rejected by Mr Michael Biggs, who appears for the Claimant. He submits that the obvious and only possible construction of the last sentence in paragraph 6 of the SoR is that the Defendant was, as that sentence states, accepting that the 2010 decision letter had not been validly notified or served in accordance with the common law requirements in Syed. The language and the context of that statement in the SoR simply cannot support the construction sought to be put on it by the Defendant.

Consideration

37. This is a short point, which in light of the concessions made on behalf of the Defendant turns on the construction of the last sentence of paragraph 6 of the SoR. It is not in dispute that this is to be construed in context, which in this case includes not just the remainder of the SoR but also the proceedings and their subject matter. On that basis it seems to me that in context the reference to "in the light of these requirements" must refer to the requirements summarised in the first two sentences of the paragraph which follow on from the acceptance in paragraph 5 that the 2013 amendment to the 2000 Order did not apply to this decision. Thus on the facts of this case the 2010 decision, which was unappealable, was subject to the common law requirements for effective service, as set out in Syed.
38. On that basis the statement in the last sentence of paragraph 6 that "the Respondent accepts that, on the facts of this case, the decision was not validly notified or served in the light of the requirements" referred to the requirements set out earlier in the paragraph and was unequivocal that on the facts the 2010 decision had not been validly notified or served. In my judgement in context or otherwise the language cannot bear the meaning for which Mr Hansen contends, namely that it is simply referring back to statutory presumption under the 2000 Order considered in paragraph 5.
39. That would in any event have been superfluous, as the inapplicability of the 2000 Order had already been accepted in paragraph 5, which addressed paragraphs 4-8 of the Claimant's grounds and the application of the statutory presumption. Moreover the use of the word "notified" in addition to "served" most naturally refers back to the common law requirement for communication referred to in Syed.
40. It does not seem to me that paragraph 7 of the SoR is inconsistent with this conclusion. Ground 1 was plainly arguable in the light of the foregoing paragraphs of the SoR but would still need to be considered at the substantive hearing as to relief and in respect of the other grounds, in so far as it affected the questions of legality which they raised.
41. For all the above reasons on the concessions made by the Defendant I conclude that the 2010 decision letter was not validly served on the Claimant and that accordingly ground 1 succeeds. I will consider remedy and any other implication of that conclusion later in this judgement.

Ground 2 the decision dated 17^th December 2017

Submissions

42. Mr Biggs submits that the decision was fundamentally flawed because of the mistake of fact and law in paragraph 15 of the decision letter where the Defendant rejected the Claimant's assertion that he had an outstanding application for leave on the basis that the onus was on the Claimant to prove that the letter had not been received. The assertion that the decision had not been served on the Claimant had been made to the officers by the Claimant when he was interviewed on 5^th November 2015 and again specifically in the representations made on his behalf by his solicitors in their letter dated 7^th December 2015. The basis for rejection is now accepted by the Defendant to have been incorrect and was fundamental as a basis for the decision.
43. While the application had been made on 22^nd December 2009 after the Claimant's leave had expired, the rules at that time allowed for an application for an extension of leave to be made at any time. It was a necessary implication that while the application remained to be determined the applicant (here the Claimant) would be allowed to stay. As a matter of fairness the Claimant could not properly be removed until his application had been validly determined. Thus, rather than being someone who had deliberately stayed on in defiance of the terms of the 2010 decision letter which required him to leave and to report to the enforcement office, the Claimant was legitimately waiting for a decision on his application, which had been made very shortly after the expiry of his leave and was lawful.
44. It follows that the basis for the Defendant's rejection of the contention was flawed in law and further that she never considered at all this material part of the Claimant's representations. In the absence of that consideration he submits that it is impossible for this court to reconstruct the factual situation to say that the Defendant would in any event have reached the same conclusion, given the fundamental change in the character of his continued residence in this country since 2009. At the very least he should have been given temporary admission to enable him to leave voluntarily or on the basis of his original application.
45. He also relies on Ahmadi to support his contention that the application had never been determined at all because the requirement for service under section 4(1) of the 1971 Act was part of the power to make the decision, as Sullivan LJ pointed out in paragraph 22. Thus the Defendant was not entitled to have regard to the 2010 decision which had never been effectively made in law.
46. In his submission these considerations apply a fortiori to the decision to certify the claim under section 94 of the 2002 Act. It would not rationally be possible in these circumstances, applying anxious scrutiny to the factors that might tell in favour of the Claimant, to rule out the possibility of the First Tier Tribunal coming to a different view from the Defendant of the Claimant's claim to further leave even on a temporary basis, particularly given the very considerable delay in determining his application made in 2009.
47. Mr Hansen submits that it is clear that the Defendant would not and could not rationally have come to any different decision. The approach of the courts in this respect is to determine whether the error was material to the overall decision. To that extent the question is whether the Defendant might have come to a different decision or for that matter for the purposes of the section 94 certificate whether the First Tier Tribunal on appeal might have done so.
48. The reasons for the decision of the Defendant on the Claimant's human rights claim were fully set out in the decision letter and amply supported on the facts of the case. The Claimant has made no criticism of that part of the decision.
49. The reference to the service of the 2010 decision letter was included in the exceptional circumstances section of the letter because it had been raised in the Claimant's representations and the Defendant was properly providing an answer to those points. However, even if the 2010 decision had not been served, the application for leave had been made after the expiry of leave and so on any view the Claimant was an unlawful overstayer, as he must have known.
50. Moreover the application had in fact been decided as set out in the letter dated 26^th January 2010. The fact that it had not been served meant that the decision was not effective in accordance with section 4(1) of the 1971, but that did not require the Defendant to assume that it ceased to exist. Indeed it could have been served in December 2015. The terms of the letter demonstrated that the Claimant's basis for seeking an extension of leave in 2009 was wholly lacking in any merit. It is to be noted that the Claimant has not sought to criticise that letter beyond the technical point that it had not been served. The point about the statutory onus was simply to rebut the contention made by the Claimant in his representations. The refusal of leave in 2015 was not based on the deliberate flouting of any requirement in the 2010 decision letter as such.
51. In these circumstances, Mr Hansen submits, there is simply no rational basis why the Defendant would have treated this as an exceptional basis for granting leave when there was no basis for leave in the first place. The overall period of residence in this country had been considered as one of the factors supporting a private life in its own right and had been rejected as supporting the grant of leave. It is not suggested in the letter that less weight was to be attached to that period of residence because his application for leave had been refused.
52. In his submission the same applies to the decision to certify the claim under section 94 of the 2002 Act. The Tribunal on appeal could not rationally have come to the decision that on the basis that the decision letter had not been served the application for leave on human rights grounds should be exceptionally allowed and the Defendant's decision to certify the claim was not flawed in law on that account.

Consideration

53. The decision on 17^th December 2015 was expressly to deal with the Claimant's further representations pursuant to section 120 of the 2002 Act. As can be seen from the solicitor's letter dated 7^th December 2015, those representations relied on the family and private life that he had established during his time in this country and his absence of ties with his country of origin. On that basis the factors set out in support of his human rights claim focused on those aspects of his private and family life. The reference to the fact that he was waiting for the decision on his 2009 application for leave as part of the factual background was evidently to make clear that he had remained here on that basis for the period in which he had established the private and family life in this country on which he relied.
54. In her reasons in the letter dated 17^th December 2015 the Defendant referred to the earlier decision refusing leave as part of the immigration history. However, as Mr Biggs accepts, in the section of the letter where she considered his claims based on his private and family life in this country under the Immigration Rules, there is nothing to suggest that she placed less weight on the period of residence or the features of his private or family life because he had not complied with the 2010 decision letter or had stayed on notwithstanding the refusal of leave. The fact was that in her judgement the representations made on his behalf were insufficient to meet the requirements of the rules for the grant of leave on those grounds.
55. Turning then to the Defendant's consideration of the factors put forward to justify the grant of leave outside the rules, the Defendant considered his social links and community activities in this country as well as his ability to rebuild a life for himself in his home country. It is clear from the language of the letter that none of those factors were considered to amount to sufficient justification for an exceptional grant of leave in this case.
56. That then leaves the question whether the decision could have been different if instead of relying on the onus being on the Claimant to prove that the 2010 decision had not been served the Defendant had accepted that the Claimant had only been told of the decision when he was encountered on 5^th November 2015 and that in any event he had not been provided with a copy of the decision letter.
57. In the first place I should make clear that I do not accept that, notwithstanding that section 3C of the 1971 Act did not apply to this application for an extension of leave after the expiry of leave, the Defendant was nevertheless prevented as a matter of public law fairness or otherwise from removing the Claimant until the application had been validly determined. I note that that contention did not form any part of the Claimant's grounds or the skeleton arguments that were submitted. In my judgement from the expiry of his leave the Claimant was an illegal overstayer and as such subject to removal by the Defendant if he did not voluntarily leave this country in accordance with the terms of the leave which he had been granted. Any question of fairness is necessarily determined on a fact specific basis, including in this case as to the circumstances in which the decision had not in fact been effected through service over the period of some six years and the absence of any action on the part of the Claimant to follow up his 2009 application for leave.
58. On the terms of the 2010 decision letter it must have been clear that the extension of leave was bound to be refused for the reasons set out in that letter. In their letter dated 7^th December 2015 the Claimant's solicitors, while stating that the application was outstanding, did not seek to supplement the grounds supporting it but made additional representations for leave on human rights grounds. They did not specifically rely on the fact of non-determination as part of their grounds for the grant of leave on human rights grounds. Indeed it is difficult to see how the failure to determine that earlier application could in itself give rise to a right to remain under article 8 of the Human Rights Act or otherwise as a matter of discretion.
59. I do not accept that the effect of section 4(1) of the 1971 Act is that the Defendant was bound to ignore the conclusions to which she had in fact come in January 2010. Section 4(1) provides that the power to give leave to remain must be exercised by giving notice. It is of course correct that in the absence of service there could not be any grant of leave to remain and in effect the application remained undetermined. However steps taken by the Defendant in dealing with the application, in this case up to the point of signing off the decision letter refusing the application with the reasons, remained as part of the factual matrix. I do not consider that this is in any way inconsistent with the analysis of section 4(1) by Sullivan LJ in Ahmadi. I also note that there has been no criticism of the reasoning in the 2010 decision letter or any other suggestion as to why the application would or should have been determined differently.
60. In these circumstances I cannot see any rational basis on which the Defendant would or could have come to a different conclusion if instead of incorrectly referring to the statutory onus of proof of service on the Claimant she had accepted that the 2010 decision had not been validly served. In my judgement the 2009 application was bound to have been refused, given the reasons in the 2010 decision letter. In terms of the Claimant's human rights claim his continued residence had enabled him to establish such social and community links as he had. Those were fully considered by the Defendant. In my judgement the Defendant could not rationally have come to a different conclusion in exercising her discretion on the further representations if she had not made the error as to onus of proof for service of the notice.
61. Accordingly, while the Defendant made an error of law and fact in contending that the onus was on the Claimant to prove service, the error did not materially affect the exercise of her discretion in the sense that, if the error had not been made and in the light of the other conclusions to which she came, she would not and could not rationally have reached any different conclusion on the application. I do not accept the contention of Mr Biggs that the exercise of discretion was in these circumstances, as he put it, fatally flawed by the error of law as such.
62. I reach the same conclusion in respect of the decision of the Defendant to certify the claim under section 94 of the 2002 Act, which by section 94(3) she was bound to do unless she was satisfied that the claim was not clearly unfounded. On the face of the decision letter there is nothing to indicate that the Defendant failed to exercise anxious scrutiny in examining all the factors which might tell in favour of the Claimant on appeal or otherwise erred in law in her approach to this question. Applying that approach, it does not seem to me that the correction of the error as to the onus of proof could have rationally affected the prospects of the First Tier Tribunal on appeal reaching any different conclusion or the Defendant's conclusion in that respect, which was a conclusion to which she was entitled to come as a matter of law.
63. For all the above reasons I reject the ground that the decision on 17^th December 2015 was unlawful either in respect of the exercise of discretion in refusing the application or in the certification of the claim under section 94 of the 2002 Act. This Ground accordingly fails.

Ground 3 Unlawful detention.

Submissions

64. Mr Biggs submits that the onus is on the Defendant to demonstrate that the detention of the Claimant on and from 5^th November 2015 was lawful. On the basis of the approach of Lord Dyson in Lumba, if the exercise of the Defendant's discretion to detain the Claimant on 5^th November 2015 was unlawful because it was based on an error of law or fact, the detention was itself unlawful. It is not saved because the Defendant could or would have detained the Claimant under some other power or based on different facts.
65. He accepts that it is then a question for the court whether the Claimant suffered loss or damage through his detention. If the Defendant can demonstrate that in fact the Defendant would have lawfully detained the Claimant, it may be that the damages would be reduced or even become nominal. However he submits that it is not possible on the facts of the present case for the court to reconstruct how the Defendant's officers would have acted if they made their decision on a correct view of the law and the facts.
66. In his submission the starting point is the EIG, which at paragraph 55.3 makes clear that there is a presumption in favour of temporary admission or temporary release and that there must be strong grounds for believing that a person will not comply with the conditions of temporary release or admission for detention to be justified. Further all reasonable alternatives must be considered before detention is authorised.
67. In the present case it was plain from the reasons given for detention that it was based to a material degree on the fact that there had been an effective decision refusing his application for leave in 2009 with no right of appeal. That is consistent with the detention review on the same day. At paragraph 6 it identified the Claimant as having a high risk of absconding on the basis in part that he had previously failed to leave the UK when required to do so. That was necessarily a reference to the requirement in the 2010 decision letter which required him to leave the UK. Without that there was no basis for assuming that he would not comply with the conditions of release, which was central to the application of the EIG presumption against detention.
68. In truth, as is now conceded by the Defendant, the Claimant was a person waiting for the decision on his lawfully made application for leave who had never been asked to leave the country and who had not otherwise failed to comply with the conditions of any temporary release or admission. In these circumstances it is clear that the Defendant through her officers never considered what alternatives there were. He was treated as a deliberate overstayer who had flouted the requirements of the 2010 decision letter. That was in contrast to the true situation, in which the Claimant could and should have been treated as a person who had made the application for leave to remain and on which the decision was yet to be effected by the Defendant, as indeed the Claimant made clear to the officers at the time. Detention was unjustified and disproportionate when conditional release or temporary admission would have been appropriate to give the Claimant the opportunity to consider the decision on his application and voluntarily to comply with its requirements.
69. That is supported, he submits, by comparison of the present case with the factors listed in paragraph 55.3.1 of the EIG. There was no evidence of absconding or non-compliance. The Claimant had social and community ties in the UK including his religious work. Apart from the prospect of his removal subject to determination of his application for leave there was no factor listed which would have supported detention.
70. For these reasons the detention was unlawful from the outset. Moreover in these circumstances there was clearly a real prospect that the Defendant's officers would have granted conditional release in accordance with her policy guidance and there is no proper basis for concluding that the Claimant would have been detained in any event or that the damages should be nominal.
71. Mr Hansen accepted that, as pointed out by Lord Dyson in Lumba at paragraphs 65-71, the onus to justify the detention is on the Defendant and that, if the detention is not shown to have been lawful because of a relevant public law error, it does not matter if there was another basis on which the person could have been lawfully detained. The detention remains unlawful, but the existence of an alternative basis for lawful detention may be highly relevant to the question of damages.
72. On the question of lawfulness Mr Hansen submits that the Claimant, having failed to make any application for an extension of leave to remain until after its expiry, had been an illegal overstayer since December 2009 and there was no demonstrable basis on which he should not be removed from the UK.
73. There were two reasons given for the Claimant's detention on 5^th November 2015, first that he was likely to abscond if given temporary admission or release and second that his removal from the UK was imminent. The identified factors for the first conclusion were again two, first that he did not have enough close ties to make it likely that he would stay in one place and second that he had previously failed or refused to leave the UK when required to do so. There were no specific factors identified to support the second reason, but, given that he had remained in the country for some six years as an illegal overstayer and that he had been served at the same time with a notice of liability for removal, it was clearly open to the officers to conclude that his removal was imminent.
74. As to likely absconding, it remained the case that on his own account he did not have close ties that would make it likely that he would stay in one place. Accordingly, even if the second factor that he had previously failed to leave the UK when required to do so is taken as a reference to the 2010 decision letter which had not in the event been served, the reason for detention remained sound in that the Claimant was without sufficient close ties to make it likely that he would stay in one place. Moreover he was a person who had been an illegal overstayer for a considerable period of time following the expiry of his leave to remain in 2009.
75. In these circumstances the fundamental basis for the detention that he was likely to abscond and that his removal was imminent remained sound even if the 2010 decision had not been effectively served. Hence the detention remained lawful.
76. In this respect he submits that it is important to bear in mind that, as set out in paragraph 55.1.1 of the EIG, the power to detain is to maintain effective immigration control and that, while there is a presumption in favour of temporary release or admission, detention is most usually appropriate to effect removal. In that respect of the factors identified in paragraph 55.3.1 as relevant to the exercise of the discretion for detention two specifically applied to the Claimant, first the likelihood of removal in the immediate future and second the absence of ties in the UK or any settled address. Thus the decision to detain, even if there had not been a previous failure to comply with a requirement to leave, would have been wholly in line with the Defendant's policy in the EIG.
77. However, even if as a matter of law the exercise of discretion is held to have been defective because of the error of law and fact, in this case it was plain that the Claimant would still have been detained on the basis of the other factors referred to above. The correct approach in this respect was set out by Vos LJ in Bostridge at paragraphs 20-23 and applied by Lewis J in Jollah no2 (see paragraphs 64-66). The court should consider on the balance of probabilities what would have been likely to have been the case if the error of law or fact had not been made. In the present case he submits that it was in any event more likely than not that the officers would in the circumstances have detained the Claimant to effect his removal from the country.
78. In this respect he submits that it is instructive to note in the detention review for 5^th November 2015 that the actual recommendation for detention was because he was an illegal overstayer, that there was no barrier to removal and that he was a single male in the UK. There was no mention in the recommendation that he had failed to comply with a requirement to leave. Further, while the assessment of a high risk of absconding in the body of the review did refer to the suggested earlier non-compliance, it was also based on the fact that he was an overstayer, that he did not have enough close ties to make it likely that he would stay in one place and that he did not have any lawful basis to be in the UK. Plainly those factors alone would have given rise to the reasonable conclusion that the Claimant was a person who had a high risk of absconding.
79. Thereafter the position as to detention did not materially change in that the representations on 7^th December 2015 did not raise anything that would realistically amount to a barrier to removal. Thus, if the Defendant would have detained the Claimant in any event in circumstances where it was accepted that the 2010 decision had not been previously served, the representation by the Claimant's solicitors that the Claimant's application for an extension of leave remained outstanding would have made no difference to that decision to detain him.
80. Proceedings for judicial review were not lodged until 22^nd January 2016, following which the Claimant was released from detention on 19^th February 2016. The Defendant was entitled to a reasonable time to consider her response to the effect of the proceedings on the likely timescale for release, including the question of expedition, and in the circumstances this was not an unreasonable response for the purpose of the Hardial Singh principles. No specific criticism has been made by the Claimant of any delay in release after proceedings were finally lodged.
81. In the circumstances, even if the court holds that the detention was initially unlawful because it was in part based on the false belief that there had been a failure to comply with the terms of the 2010 decision letter, there was here no damage suffered by the Claimant because on the facts he would have been likely to have been detained in any event for the purposes of his removal and for a similar period of time.

Consideration

82. In my judgment the belief of the Defendant's officers that the Claimant had failed to comply with the terms of the 2010 decision letter was on the evidence a material factor in the decision to detain the Claimant from 5^th November 2015. In the notice of reasons for his detention his failure to comply with the 2010 decision in effect formed one of the two stated reasons for concluding that he was likely to abscond. On any view it was potentially a material factor and in the circumstances I have concluded that it was so treated in the actual decision to detain and his detention thereafter.
83. In my judgement in the present case the issue of non-compliance was expressly taken into account by the officers in making their decision to detain the Claimant and thereafter to maintain that detention. That was in law open to the officers as a lawful consideration, but, as now accepted, it was based on an error of law and fact. In these circumstances, as explained by Lord Dyson in Lumba (see paragraphs 65-71), the detention was unlawful, but there remains the question whether the Claimant suffered damage as a result of that unlawful detention and in particular whether he would in any event have been detained and for the same period if the error had not been made.
84. I should make clear that there is a distinction between the question whether a consideration is material to a decision in law in that it may or could have resulted in a different conclusion and the consideration of the consequences of such an error, which is to be considered on the basis of what would have happened if the error had not taken place. In the present case I have accepted that the fact that the Claimant had not failed to comply with the earlier requirement to leave the UK in the 2010 letter was material in that it was a factor which the Defendant could properly take into account in determining whether or not the Claimant should be detained. However, that is not conclusive of the consideration whether on the evidence I should conclude that the Defendant would in any event have detained the Claimant, a consideration to which I now turn.
85. The approach in this respect is for the court to determine as a matter of fact on the balance of likelihood what would have occurred if the error had not been made, in other words if it was accepted that the decision letter had not been effectively served so that there was not as such non-compliance with its terms (see Bostrdge per Vos LJ at paragraphs 20-23 and Jollah (no 2) per Lewis J at paragraphs 64-66). The onus of proof in this respect is on the Defendant.
86. On this basis on 5^th November 2015 the Claimant was a person who had unlawfully overstayed for a period of about six years. While he had not been previously served with the decision refusing his application for an extension of leave, he was told of that decision on 5^th November 2015. In terms of the EIG he was a person who had failed voluntarily to leave the country when his leave expired. He was without close ties or a settled address in the UK. There was no obstacle to his removal and he was likely to be removed in the near future. On the conclusions of the Defendant's officers he was a single man with no settled address or other social or other links to make it likely that he would stay in one place. In my judgement on this basis it is likely that the officers would have served the Claimant with a notice that he was liable to removal. Furthermore in these circumstances I consider that it is likely that the officers would have considered that for the purposes of securing his removal there was no reasonable alternative to his detention, given the risk of absconding in the light of the factors to which I have referred.
87. In my judgement that would have been a decision lawfully open to the officers, having regard to the policies in the EIG and otherwise and one which they would have been likely to have taken. I do not consider that it would have been unjustified or disproportionate, notwithstanding that there had not previously been a specific letter requiring him to leave. On any view he was a person who had chosen to remain unlawfully in this country for a considerable period of time and for whom there would have remained a significant risk of absconding. In those circumstances the officers would have been entitled to and would have concluded that the grant of temporary admission or release on conditions would not have been a reasonable alternative.
88. In my judgement it is likely that thereafter events would have proceeded in much the same way in which they in fact did. The Claimant's solicitors would have made further representations for leave on human rights grounds, which would have been refused. The claim for judicial review would probably have been made at the same time, following which the Claimant would have been likely to have been released, having regard to the implications of those proceedings for the timing of his removal.
89. In these circumstances I conclude that, while the detention was unlawful being based in part on an error of law and fact, the Claimant suffered no damage as a result of his unlawful detention in that he would have been detained for the same period of time, even if that error had not been made. Accordingly ground 3 succeeds to the extent that the detention was unlawful, but I conclude that the Claimant suffered no damage as a result of his unlawful detention in that he would have been lawfully detained for the same period in any event.

Conclusion

90. In accordance with the above ground 1 succeeds in that the 2010 decision was not served before 5^th November 2015. However, the Claimant was told of the decision on 5^th November 2015 and has since been provided with the decision letter. In the light of the terms of this judgement it seems to me that any declaration to the above effect would be unnecessary and to this extent academic. I accordingly refuse relief in that respect.
91. Ground 2 fails.
92. Ground 3 succeeds in that the detention was unlawful. However the Claimant suffered no damage as a result of his unlawful detention in that he would have been lawfully detained in any event. In these circumstances he is entitled only to nominal damages.